California Appellate Court Refuses to Publish Anti-Camera Decision

Robert Farago
by Robert Farago

A California appellate court on Wednesday declined to publish a decision overturning a ticket issued by an unlawful red light camera operation ( view ruling). California Superior Court, San Mateo County Appellate Judge Mark R. Forcum turned down attorney Frank Iwama’s request that he explain his reasoning more fully in a published decision. Unpublished cases cannot be cited as precedent in California, and motorists interested in challenging citations will have to repeat from scratch all arguments about the program’s illegality.

“I am deeply disturbed and saddened that, despite the judge’s courageous action in interpreting the law, the judge has not taken the next step of modifying and certifying his opinion for publication,” Iwama said in a statement. “The publication of the opinion in the Official Reports would have served as a badly needed and useful precedent for the people in seeking guidance in the interpretation and application of the cost-neutrality clause in red-light camera contracts.”

Other California courts have struck down red light camera programs on various legal grounds in cases such as: Franco, Murray, Graham, Williams and Bohl. The Fischetti case actually held published status for a time only later to become depublished by the state supreme court. In court filings, the League of California Cities suggested that allowing such rulings to stand with precedential value would force them to issue refunds or cancel their programs outright, costing millions.

“One of the first principles we all learn in school is the power of the Constitution and the independence and separation of powers between the three branches of government,” Iwama said. “During this difficult economic time, it seems that financial necessity overrules the highest principles between what is right and wrong regardless of potential economic consequence.”

Ken Schmier, Chairman of the Committee for the Rule of Law has been fighting the state’s use of non-publication rules. His cause has gained traction over time. In 2000, the US Court of Appeals for the Eight Circuit issued a scathing decision declaring non-citation rules unconstitutional.

“Some forms of the non-publication rule even forbid citation,” Judge Richard S. Arnold wrote in Anastasoff v. US. “Those courts are saying to the bar: ‘We may have decided this question the opposite way yesterday, but this does not bind us today, and, what’s more, you cannot even tell us what we did yesterday.’ As we have tried to explain in this opinion, such a statement exceeds the judicial power, which is based on reason, not fiat.”

This line of reasoning brought the US Judicial Conference in 2006 to adopt a rule that put an end to all non-citation rules in the federal court system. Schmier believes that California’s highest court refuses to follow suit because that would mean relinquishing the power that comes from deciding which cases become the law of the land.

“The idea is that a small group of people (actually the chief justice and a few of his political supporters) will control California’s operative precedent,” Schmier told TheNewspaper. “The red light cases are but one example where one defendant will be treated differently from the rest because he had an attorney appeal the case. But we ask: What kind of police cites people, what kind of prosecutor prosecutes people, and what kind of judge convicts people, all the while knowing that its own appellate court has decided that the people are not to be charged?”


Robert Farago
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  • FreedMike FreedMike on Oct 18, 2009
    Daanii2 : October 18th, 2009 at 4:09 pm It is insane. Your Eighth Amendment challenge sounds like a good idea. I’ve thought of challenges under the Fifth, Sixth and Tenth Amendments, but not the Eighth. My plan is to take my wife’s case as far up the state court system as appeals can go. Then turn to the federal court system. Luckily, I’m registered to practice before the Northern District of California federal district court. We’ll see what they think. I'm no attorney, but I don't think you'll be able to make much of an argument using the fifth or sixth amendments. The system isn't self-incriminating, and there are hundreds of precedents the state can cite in which video evidence is admissible in court. I also don't see a Tenth Amendment argument here either - it's the state doing this, not the Feds. I think you should formulate this as a violation of the Eighth Amendment. It may not get the ticket thrown out, but if the fine can be reduced, you reduce the private contractor's profit margin. Make it unprofitable, and they won't stay in business. Problem solved. Just some thoughts... The other pressure that can be brought to bear is political, at the grass roots level. You would have to think that ANYONE who gets tagged with a $436 ticket for something as minor as failing to stop completely at a red light while turning would be beside himself with anger. I would. Maybe the system holds within itself the seeds of its own downfall. Anyway, good luck.
  • Windswords Windswords on Oct 19, 2009

    St Basil’s? I thought for a moment there that was a pic of the California state capital building!

  • Varezhka The biggest underlying issue of Mitsubishi Motors was that for most of its history the commercial vehicles division was where all the profit was being made, subsidizing the passenger vehicle division losses. Just like Isuzu.And because it was a runt of a giant conglomerate who mainly operated B2G and B2B, it never got the attention it needed to really succeed. So when Daimler came in early 2000s and took away the money making Mitsubishi-Fuso commercial division, it was screwed.Right now it's living off of its legacy user base in SE Asia, while its new parent Nissan is sucking away at its remaining engineering expertise in EV and kei cars. I'd love to see the upcoming US market Delica, so crossing fingers they will last that long.
  • ToolGuy A deep-dive of the TTAC Podcast Archives gleans some valuable insight here.
  • Tassos I heard the same clueless, bigoted BULLSHEET about the Chinese brands, 40 years ago about the Japanese Brands, and more recently about the Koreans.If the Japanese and the Koreans have succeeded in the US market, at the expense of losers such as Fiat, Alfa, Peugeot, and the Domestics,there is ZERO DOUBT in my mind, that if the Chinese want to succeed here, THEY WILL. No matter what one or two bigots do about it.PS try to distinguish between the hard working CHINESE PEOPLE and their GOVERNMENT once in your miserable lives.
  • 28-Cars-Later I guess Santa showed up with bales of cash for Mitsu this past Christmas.
  • Lou_BC I was looking at an extended warranty for my truck. The F&I guy was trying to sell me on the idea by telling me how his wife's Cadillac had 2 infotainment failures costing $4,600 dollars each and how it was very common in all of their products. These idiots can't build a reliable vehicle and they want me to trust them with the vehicle "taking over" for me.